Exhibit 10.6.3
GUARANTY
Guaranty made and delivered October 21, 1997 by the undersigned parties hereto
(individually and collectively, "Guarantor"), to Franchise Mortgage Acceptance
Company, LLC ("FMAC").
In order to induce FMAC, from time to time, to consider entering into lease
arrangements, loan agreements, financial accommodations or to extend credit in
any matter with or to Newriders, Inc. ("Obligor"), (said arrangements,
agreements or accommodations hereinafter referred to as the "Instruments"),
Guarantor (jointly and severally if more than one) guarantees to FMAC the
prompt payment of all moneys now due or hereafter becoming due by Obligor to
FMAC and the timely performance by Obligor of all Obligor's obligations to
FMAC, whether they arise pursuant to the Instruments or otherwise
("Obligations"). Obligations shall include, but not be limited to Secured
Installment Promissory Notes numbered 11441-100, 11441-101, 11441-102, 11441-
103, and 11441-104. This Guaranty is, and shall be construed to be, an
absolute unlimited and continuing guaranty of payment and performance and the
liability of Guarantor hereunder shall not be affected, impaired or
discharged, in whole or in part, by reason of any matter whatsoever, including
(a) an extension or discharge that may be granted to Obligor by any Court and
any proceedings under the Bankruptcy Code, or any amendments thereof, or under
any state or other federal statutes; or (b) any irregularity in any of the
Instruments or this Guaranty; or (c) any other agreement or circumstance
whatsoever which might otherwise constitute a defense to this Guaranty or to
Guarantor's obligations hereunder.
FMAC shall have the right to proceed against Guarantor,(or if more than one,
any of them), immediately upon any default by Obligor in payment or
performance of any Obligations and shall not be required to take any action or
proceedings of any kind against Obligor or any other party liable for
Obligor's debts or Obligations or any security which FMAC may hold. No payment
by Guarantor except payment in full of all Obligations shall entitle Guarantor
to be subrogated to the rights of FMAC. Guarantor expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration, contribution or
any other claim which it may now or hereafter have against Obligor or any
person directly or contingently liable for the Obligations guaranteed
hereunder, or against or with respect to Obligor's property (including,
without limitation, property collateralizing the Obligations guaranteed
hereunder), arising from the existence or performance of this Guaranty. Any
and all present and future indebtedness of Obligor to Guarantor is hereby
postponed in favor of, and subordinated to the full payment and performance
of, all present and future Obligations of Obligor to FMAC.
The Guarantor hereby waives (a) notice of acceptance of this Guaranty and all
other notices of any kind to which Guarantor may be entitled, and (b) trial by
jury and the tight thereto in any action or proceeding of any kind arising on,
out of, under or by reason of this Guaranty. FMAC shall have the right, from
time to time and at anytime, in its sole discretion and without any notice to,
or consent from, Guarantor (which are hereby waived by Guarantor), and without
affecting, impairing or discharging, in whole or in part, the liability of
Guarantor hereunder, to modify, or change or supplement in any respect
whatsoever, the Instruments or any other agreement or transaction between
Obligor and FMAC, or any portion or provisions thereof, to grant extensions of
time and other indulgences of any kind to Obligor, and to compromise, release,
substitute, exercise, enforce or fail or refuse to exercise or enforce any
claims, rights or remedies of any kind which FMAC may have, at any time,
against Obligor or Guarantor, any endorser or other party liable for Obligor's
Obligations or any collateral therefor, whether under the Instruments or this
Guaranty or otherwise. The obligations of Guarantor hereunder shall not be
affected, modified or impaired in the event any provision of the Instruments
shall be unenforceable. Guarantor hereby absolutely, unconditionally and
irrevocably waives any right to assert any defense, set-off counterclaim or
loss claim of any nature whatsoever with respect to this Guaranty,Guarantor's
obligations hereunder or the Obligations.
If Guarantor or Obligor should at any time become insolvent or make a general
assignment for the benefit of creditors, or if a proceeding shall be commenced
by, against or in respect of Guarantor or Obligor under the Bankruptcy Code or
any State insolvency law, or any individual Guarantor dies, any and all of
Guarantor's obligations under this Guaranty shall, at FMAC's option, forthwith
become due and payable without notice.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
executors and administrators, and shall inure to the benefit of the
distributees, executors, administrators, successors and assigns of FMAC.
Obligor may not delegate any of its obligations under this Guaranty. FMAC
shall have the right to assign and transfer this Guaranty to any assignee of
the Obligations or Instruments. FMAC's successors and assigns shall have the
rights, elections, remedies and privileges, discretions and powers granted
hereunder to FMAC and shall have the right to rely upon this Guaranty and to
enter into and continue other and additional transactions with the Obligor in
reliance hereon, in the same manner and with the same force and effect as if
they were specifically named as FMAC herein.
The term of this Guaranty shall commence on the date hereof and shall continue
until all Obligations and the Instruments, absolute or contingent, have been
fully paid, satisfied and discharged. This Guaranty is delivered in the State
of Connecticut and shall be governed, construed and interpreted, as to
validity, enforcement and in other respects, by the law of the State of
Connecticut. Guarantor consents and agrees that if FMAC so elects, the state
and federal courts in the State of Connecticut shall have exclusive
jurisdiction of all controversies and disputes arising hereunder. Guarantor
hereby consents and submits to the personal jurisdiction of such courts and
waives any objection Guarantor may have to the venue or the convenience of
such forums. This Guaranty cannot be terminated orally and no provision hereof
may be modified or waived except by FMAC in writing.
Guarantor hereby agrees to provide to FMAC such information as to the business
affairs and financial condition of Guarantor as FMAC may, from time to time,
reasonably request and to notify FMAC of any change of address of Guarantor
within ten (10) days.
IN WITNESS WHEREOF, this Guaranty has been duly sealed and executed by
Guarantor as of the date first above written.
(Signature for Individual) Signature: /s/ Xxxx Xxxxxxx
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Type name: Xxxx Xxxxxxx
Social Security No.: ###-##-####
Residence Address: 0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Signature: /s/ Xxxxxx Xxxxxxx
--------------------------------
Type Name: Xxxxxx Xxxxxxx
Social Security No.: ###-##-####
Residence Address: 0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
ACKNOWLEDGMENT
STATE OF CA )
COUNTY OF FRESNO )
On this 3rd day of November, 1997, before me personally came
Xxxx Xxxxxxx and Xxxxxx Xxxxxxx proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) are subscribed to the within
instrument and acknowledged to be that they executed the same in their
authorized capacity, and that by their signature on the foregoing instrument
the persons or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
/s/ Xxxxx Xxxxx
--------------------
Notary Public
ACKNOWLEDGMENT
STATE OF CA )
)ss:
COUNTY of Fresno )
On this 3rd day of November 1997, before me personally came Xxxx
Xxxxxxx and Xxxxxx Xxxxxxx to me personally known and known to me to be the
same persons described in and who executed the foregoing instrument, and each
acknowledged to me that each executed the same.
RIDER A TO GUARANTY (CALIFORNIA)
THIS RIDER "A" TO GUARANTY (this "RIDER") is executed as of the 21st day
of October, 1997, by the undersigned ("Guarantor"), in favor of Franchise
Mortgage Acceptance Company, LLC (the "Lender"), and is made a part of and
incorporated into that certain Guaranty, of even date herewith (the
"Guaranty"), executed by Guarantor in favor of the Lender. This Rider is
executed by Guarantor in light of the following facts:
WHEREAS, in order to induce Lender to lend Newriders, Inc. ("Borrower")
such sum as may be evidenced by a promissory note of Borrower in favor of
Lender dated of even date herewith (the "Note") or otherwise extend financial
accommodations in favor of Borrower secured by a Deed of Trust and Security
Agreement or other instruments (collectively called the "Loan Documents"),
Guarantor has agreed to guaranty the obligations of Borrower owing to Lender
to the extent provided for in the Guaranty;
WHEREAS, Lender has required, and Guarantor has agreed to add certain
additional terms and provisions to the Guaranty pursuant to this Rider; and
WHEREAS, all capitalized terms utilized herein and not defined herein
shall have the meaning set forth in the Guaranty;
NOW, THEREFORE, Guarantor agrees as follows:
1. Guarantor hereby waives any defense arising by reason of and any and
all right to assert against Lender any claim or defense based upon an election
of remedies by Lender which in any manner impairs, affects, reduces, releases,
destroys and/or extinguishes Guarantor's subrogation rights, rights to proceed
against Borrower or any other guarantor for reimbursement or contribution,
and/or any other rights of the Guarantor to proceed against Borrower, against
any other guarantor, or against any other person or security, including, but
not limited to, any defense based upon an election of remedies by Lender under
the provisions of Section 580d and 726 of the California Code of Civil
Procedure, and/or any similar law of California or of any other jurisdiction.
2. Guarantor is presently informed of the financial condition of Borrower
and of all other circumstances which diligent inquiry would reveal and which
bar upon the risk of nonpayment of the Obligations. Guarantor hereby covenants
that it will make its own investigation and will continue to keep itself
informed of Borrower's financial condition, the status of other guarantors, if
any, of all other circumstances which bear upon the risk of nonpayment and
that it will continue to rely upon sources other than the Lender for such
information and will not rely upon Lender for any such information absent a
written request for such information by Guarantor to Lender, Guarantor hereby
waives its right if any, to require Lender to disclose to Guarantor any
information which Lender may now or hereafter acquire concerning such
condition or circumstances including, but not limited to, the release of or
revocation by any other guarantor.
3. Guarantor hereby acknowledges, represents and warrants to Lender: that
this Guaranty and Guarantor's execution hereof was and has been solicited by
Borrower and not by Lender; to furnish to Lender all facts known to and/or
hereafter discovered by Guarantor, relating to Borrower's ability to pay and
perform the Obligations and relating to Guarantor's ability to pay and perform
Guarantor's obligations under the Guaranty; that Lender is and will continue
to rely upon the facts and information to be furnished to it by Guarantor as
aforesaid; that Guarantor has independently reviewed the Instruments and has
made an independent determination as to the validity and enforceability
thereof; and that in executing and delivering this Guaranty to Lender,
Guarantor is not in any manner relying upon the validity, and/or
enforceability, and/or attachment and/or perfection of any liens or security
interest of any kind of nature granted by Borrower to Lender, now, or at any
time and from time to time in the future.
4. In the event that all or any part of the Obligations at any time are
secured by any one or more deeds of trust or mortgages or other instruments
creating or granting liens on any interest in real property, Guarantor
authorizes Lender, at its sole option, without notice or demand and without
affecting any obligations of Guarantor under the Guaranty, the enforceability
of this Guaranty, or the validity or enforceability of any liens of Lender on
any collateral, to foreclose any or all of such deeds of trust or mortgages or
other instruments by judicial or nonjudicial sale. Guarantor expressly waives
any defenses to the enforcement of this Guaranty or any rights of Lender
created or granted hereby or to the recovery by Lender against Borrower or
Guarantor or any other person liable therefor of any deficiency after a
judicial or nonjudicial foreclosure or sale, even though such a foreclosure or
sale may impair the subrogation rights of Guarantor and may preclude Guarantor
from obtaining reimbursement or contribution from Borrower or any other
guarantors. Guarantor expressly waives any defenses or benefits that may be
derived from California Code or Civil Procedure 580a, 580b or 726, or
comparable provisions of the laws of any other jurisdiction, and all other
suretyship defenses it otherwise might or would have under California law or
other applicable law. Guarantor expressly waives any right to receive notice
of any judicial or nonjudicial foreclosure or sale of any real property or
interest therein subject to any such deeds of trust or mortgages or other
instruments and Guarantor's failure to receive any such notice shall not
impair or affect Guarantor's obligations under the Guaranty or the
enforceability of this Guaranty or any rights of Lender created or granted
hereby.
5. Guarantor waives any and all right to assert against Lender any claim or
defense based upon or arising under Sections 2809, 2810, 2919, 2920, 2921,
2922, 2923, 2924, 2825, 2839, 2845, 2948, 2949, and 2850 of the Civil Code of
the State of California, and/or any similar laws of California, New York or of
any State, or of the United States.
6. Except as specifically modified by this Rider, the Guaranty has not
been modified and shall remain in fall force and effect.
IN WITNESS WHEREOF, Guarantor has cause this Rider to be executed as of
the date first hereinabove written.
Signature: /s/ Xxxx Xxxxxxx Signature: /s/ Xxxxxx Xxxxxxx
--------------------------- ------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
8117 North Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
